Demand that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining “retail pet store” to prohibit sales of companion animals (Part III)

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October 15, 2014

HOW YOU CAN HELP ANIMALS!

By demanding that the United States Department of Agriculture (USDA) and its Animal and Plant Health Inspection Service (APHIS) modify its final Rule redefining “retail pet store” to prohibit sales of companion animals (Part III)

A major defect in many animal protection statutes is that crucial terms are ill-defined, or not defined at all. This failure leads to ambiguity, unavoidable litigation, lack of enforcement, and other problems undermining or defeating the goals the legislation was enacted to achieve.

“Commercial”: “relating to the buying, selling, or barter of dogs and cats in return for a monetary or non-monetary benefit.”

“Retail”: “the selling of dogs and cats directly to purchasers.”[1]

“Sale”: “the transfer of ownership of dogs and cats for monetary or other consideration.”

“Seller”: “any person or legal entity that makes a sale.”

“Outlet”: “the place where, or through the means of which, a retail sale occurs.”

“Purchaser”: “any person or legal entity that is the recipient of a sale.”

“Breeder”: “any person who, or legal entity which, intentionally, recklessly or negligently causes or allows a female dog or cat to be inseminated by, respectively, a male canine or feline.”[2]

“Mill”: “a place where at the same time more than three female dogs or cats are kept whose sole or major purpose is producing puppies or kittens for sale.”[3]

“Facilitator”: “any person or legal entity, not a breeder, seller, outlet or purchaser, as defined herein, who acts as a broker, dealer, wholesaler, agent, bundler, middleman or in any similar role in the sale, purchase, trade, auction, or other transfer of the ownership of dogs or cats, whether or not such animals are in the custody or control of the facilitator at the time of transfer.”[4]

ISAR published our Anti-Breeding Statute in 2009. In our Introduction we wrote:

While ISAR’s [Anti-Breeding] Statute applies to all breeders, it contains certain provisions aimed specifically at the horrors of mills because they are, by far, the most inhumane kind of breeding that exists today in the United States and elsewhere in the world.

Puppy mills, however, are only the first stage in the mass production and sale of dogs. Next come the facilitators, followed by the commercial retailers who sell to the public.

That public, however, [usually] has little or no [information] just how immoral and inhumane are certain aspects of the business of commercially producing and selling puppies and adult dogs [and kittens and adult cats] as if they were inanimate objects, no different from sausages.

Not only is the factory-like commercial production and sale of dogs [and cats] by itself immoral and inhumane, the business is a leading cause of the nationwide canine [and feline] overpopulation problem. That problem, in turn, has an adverse impact not only on the animals themselves, but also on society at large. Overpopulation of dogs [and cats] has severe economic, social, political, financial, health, environmental and other consequences which are well-documented and not debatable.

Accordingly, by severely reducing the numbers of dogs [and cats] produced by breeders, brokered by facilitators, and sold by commercial retailers, the related problems of immorality, inhumaneness and overpopulation could be dealt a serious blow.

Regrettably, however, even the most aggressive educational efforts by the animal protection movement have not been powerful enough to put sufficient pressure on breeders, facilitators and commercial retailers to reduce voluntarily their production and sales of dogs, let alone to drive them out of business altogether.

That said, however, there is a way in which production, trafficking and sale of dogs [and cats] can be greatly reduced — a way in which puppy mill producers, facilitators and commercial retail sellers of dogs [and cats] could virtually be put out of business.

How, then, to accomplish this worthy goal?

The short answer — which is developed at length in this Monograph [containing ISAR’s Anti-Breeding Statute] — is through strict administrative regulation of breeders, facilitators and commercial retail sellers, coupled with harsh penalty and generous “standing to sue” provisions.

As we made clear in that Monograph and Anti-Breeding Statute, ISAR’s strict, even extreme “regulation” of breeders, facilitators and retail sellers was designed to be a virtual de facto prohibition of dealing in dogs and cats. We wrote:

Preface to ISAR’s [Anti-Breeding Statute]
The Humane Society of the United States suggests that an acceptable statute regulating a puppy breeding facility is one which

applies to all breeding operations with animals or animal sales numbering over a specified threshold; requires a licensing fee and pre-inspection; includes routine, unannounced inspections at least twice yearly; is enforced by an agency with adequate funding and properly trained and tested staff; rotates inspectors to cover different areas of the state; and is equipped with strong penalties when facilities are in repeated non-compliance, including but not limited to cease and desist orders.[5]

While these requirements impose conditions and behavior which are better than those found today in most, if not all, statutes, implicit in them are two premises which ISAR categorically rejects: (1) that indiscriminate breeding of dogs [and cats] is morally acceptable so long as it is moderately (“humanely”!?) regulated, and (2) that through such “moderate” regulation the treatment of dog [and cat] “breeding machines” can be made morally and humanely tolerable.

If another of ISAR’s monographs The Policy, Law and Morality of Mandatory Spay/Neuter, and Chapters 1, 2 and 3 of [our Anti-Breeding] monograph teach anything, they speak loudly for the proposition that there is an intractable dog and cat overpopulation problem, that the only feasible way to alleviate it today is by mandatory spay/neuter and severe regulation of breeders, facilitators and commercial retail sales outlets, and that legislation seeking to deal with the problem must be strict, comprehensive, loophole-free, and without the kinds of compromises that gut the few statutes which have been enacted and others that are now in the legislative pipelines.

In the end, dealing effectively with the breeder-facilitator-commercial retail sales outlet situation, and the dog [and cat] overpopulation problem it so greatly contributes to, is an either/or choice.

Either the dog [and cat] breeding, facilitating and sales valve is turned off almost completely, or useless and counterproductive legislative efforts will perpetuate the charade that something constructive is being done while countless millions of hapless prisoner dogs [and cats] continue to be bred, born, traumatized, abused, killed, and incinerated-and while figuratively, and often literally, our land is suffused with their wind-borne ashes.
In ISAR’s proposed [Anti-Breeding] Statute, we have made the “either” choice: ISAR proposes to turn off almost completely the dog [and cat] breeding, facilitating and commercial retail selling outlet valve, and in so doing see the dog [and cat] overpopulation problem substantially ameliorated.

Before presenting the annotated text of ISAR’s proposed [Anti-Breeding] Statute, several important antecedent points have to be made.

First. ISAR realizes that its proposed [Anti-Breeding] Statute far exceeds the prohibitions on breeding, facilitation and sales which appear in other animal protection laws, actual and proposed. ISAR has staked out its extreme position because our organization deeply believes that only very strict regulatory laws will achieve the stated goal, and if there are to be necessary compromises they must be as few, narrow, and morally and humanely defensible as possible.

Second. ISAR acknowledges that even if its proposed [Anti-Breeding] Statute were to be adopted by the federal government, or in a slightly different form by every state in America, there would still be unwanted dogs [and cats]. ISAR believes, however, that if its [Anti-Breeding] Statute accomplishes its intended purpose there would be adoptive homes for those far fewer dogs [and cats]. (In this connection, see ISAR’s blog: Redemption: The Myth of Pet Overpopulation in America by Nathan J. Winograd).

Third. ISAR believes that while Americans have the right to enjoy the companionship and services of dogs [and cats] of their choosing, no one has either the moral or legal right to be an accessory to the tortured lives and ultimate fates that await the living reproductive machines of most breeders and all puppy [and cat] mills, and many of their offspring.

Fourth. As Chapter 2 proves, there are neither constitutional nor legal impediments to even the most restrictive breeding and sales laws. Attacks on them in court will fail if the statutes are drafted carefully and defended intelligently.

Fifth. Readers of ISAR’s [Anti-Breeding] Statute may be surprised at its comparative simplicity. There are several reasons for its comparative brevity. Since ISAR’s [Anti-Breeding] Statute could be enacted on the federal level, and thus be uniformly applicable nationwide, no provisions for state or local involvement are necessary. However, absent Congressional enactment, the statute could easily be adapted for, and enacted on, a state level. Even then, there would be no need for local involvement.[6]

Sixth. ISAR’s [Anti-Breeding] Statute is not the last word on the subject, neither from [its own text,] nor [from] any one person or other organization who can offer constructive suggestions — so long as others recognize the underlying premise upon which ISAR’s proposal is based: turning off almost completely the dog [and cat] breeding, facilitating and commercial retail sales outlet valve [emphasis in original]. That is ISAR’s goal, and that is what it has endeavored to codify in the [Anti-Breeding] Statute.

Seventh. ISAR is well aware that our statute will be unpopular not only with dog breeders, facilitators and commercial retail sales outlets, aiders and abettors, and others complicit in the dog-trade, but also with other animal protection organizations. So be it!

ISAR’s pessimistic 2009 prediction proved correct, doubtless because our Anti-Breeding Statute challenged the root premises of commercial production of dogs and cats, from their conception to their sale at retail.

Many individuals and organizations who should have known better, and from whom we expected support, opposed ISAR’s Anti-Breeding Statute. Because the nature and quality of their objections lacked consistency, let alone substance, they will not be discussed here.

On the other hand, since 2009 some of ISAR’s supporters argued for an outright ban on retail sales of dogs and cats, and have sought ISAR’s help in making the argument in support of that goal.

Accordingly, our Monograph and ISAR’s “Model Statute Prohibiting Retail Sales of Dogs and Cats,” is a brief in support of that goal.[7]

That goal has become even more important because on November 18, 2013 a new rule of the United States Department of Agriculture, Animal and Plant Health Inspection Service became final. According to APHIS

USDA has changed the Animal Welfare Act regulations by revising its definition of retail pet store in order to keep pace with the modern marketplace and to ensure that animals sold via the Internet or other non-traditional methods receive humane care and treatment. USDA Animal Care has posted several materials on this webpage in an effort to provide all interested parties with pertinent information. We encourage you to please read through these materials in order to: 1) gain a better understanding of this regulation change; 2) learn the reasons that prompted the change; and 3) see if you need a USDA license or if you are exempt from licensing.

As ISAR will explain in a forthcoming essay, the deficiencies in APHIS’s regulation of pet shops and those associated in the sale of companion animals are so glaring and counterproductive that the only humane solution is, as ISAR’s model statute proposes, outright prohibition of retail sale.

2 This definition is deliberately broad because it intends to include all breeding-from family pets to the most egregious types, puppy mills and kitten factories.

3 A puppy mill has been defined by one court as “a dog breeding operation in which the health of the dogs is disregarded in order to maintain a low overhead and maximize profits.” Avenson v. Zegart, 577 F. Supp. 958, 960 (D. Minn. 1984). While that description of a puppy mill accurately identifies one aspect of such an operation, applying equally to a place where cats are bred commercially, it does not adequately invoke the horrors of mills and is thus insufficient for the purposes of ISAR’s Model Statute.

4 The Animal Health and Plant Inspection Service (hereafter “APHIS”), a division of the United States Department of Agriculture (hereafter “USDA”) has grouped “pet wholesalers” and “animal brokers” under the heading of “dealers.” Pet wholesalers are defined as “anyone importing, buying, selling, or trading pets in wholesale channels.” Licensing and Registration Under the Animal Welfare Act, USDA, available at http://www.aphis.usda.gov/animal_welfare/downloads/aw/awlicreg.pdf . Animal brokers are defined as “anyone who deals in regulated animals but does not take physical possession.” Id. Both pet wholesalers and animal brokers are required to be licensed by USDA. Id. The Humane Society of the United States (hereafter “HSUS”) defines brokers as those who purchase dogs from puppy mills and kennels and then resell them to retail pet stores. More on How Petland Continues to Support Cruel Puppy Mills, HSUS, Jun. 29, 2009, available athttp://www.hsus.org/pets/. The term “facilitator” as used in ISAR’s Model Statute is intended to include all of the persons and legal entities described above.

6 In addition, compromises and exemptions which always require considerable verbiage to accommodate, have been held to a bare minimum, unlike in the recent unlamented California “mandatory” spay/neuter statute which, until its demise at the hands of compromisers and lobbyists, attempted to accommodate various anti-mandatory spay/neuter constituencies and in doing so turned itself inside out.

7 Please note that throughout the Monograph 12-point Georgia font was used. The same specifications apply to the text of ISAR’s Model Statute. However, inorder to identify ISAR’s annotation of each section of the West Hollywood ordinance and our Model Statute, ISAR’scomments appear immediately after each section in 12-point Courier font, in which this sentence is written).